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Robert Mueller:Post 2001
January-April 2002: FBI Gives Control of Al-Qaeda Prisoners to CIA; Bush Rejects Law Enforcement Approach In the first months after 9/11, the FBI is generally in charge of captured al-Qaeda detainees and the assumption is that these detainees will be sent to the US for criminal prosecutions. However, beginning in January 2002, this policy begins to change. The highest ranking al-Qaeda detainee in US custody at the time, Ibn al-Shaykh al-Libi, is transfered from FBI to CIA custody and then flown to Egypt to be tortured by the Egyptian government (see January 2002 and After). ]]). Also in January, the CIA, not the FBI, begins secretly flying detainees to the US-controlled prison in Guantanamo, Cuba (see January 14, 2002-2005). Journalist James Risen will later comment, “By choosing the CIA over the FBI, President Bush was rejecting the law enforcement approach to fighting terrorism that had been favored during the Clinton era. Bush had decided that al-Qaeda was a national security threat, not a law enforcement problem, and he did not want al-Qaeda operatives brought back to face trial in the United States, where they would come under the strict rules of the American legal system.” 2006, PP. 28 This change of policy culminates in the arrest of Abu Zubaida (see March 28, 2002). The Washington Post will later report, “In March 2002, Abu Zubaida was captured, and the interrogation debate between the CIA and FBI began anew. This time, when FBI Director Robert S. Mueller III decided to withhold FBI involvement, it was a signal that the tug of war was over. ‘Once the CIA was given the green light… they had the lead role,’ said a senior FBI counterterrorism official.” POST, 6/27/2004 The CIA decides that Guantanamo is too public and involves too many US agencies to hold important al-Qaeda detainees. By the time Zubaida is captured the CIA has already set up a secret prison in Thailand, and Zubaida is flown there just days after his capture (see March 2002). Risen will comment, “The CIA wanted secret locations where it could have complete control over the interrogations and debriefings, free from the prying eyes of the international media, free from monitoring by human rights groups, and most important, far from the jurisdiction of the American legal system.” 2006, PP. 29-30 January 22-25, 2002: India Tells FBI Director About Saeed Sheikh Connection to 9/11 FBI Director Mueller visits India, and is told by Indian investigators that Saeed Sheikh sent ransom money to hijacker Mohamed Atta in the US. In the next few days, Saeed is publicly blamed for his role with gangster Aftab Ansari in financing Atta and organizing the Calcutta attack (see January 22, 2002). TRUST OF INDIA, 1/22/2002; LOS ANGELES TIMES, 1/23/2002; INDEPENDENT, 1/24/2002; AGENCE FRANCE-PRESSE, 1/27/2002; DAILY TELEGRAPH, 1/27/2002 Meanwhile, on January 23, Saeed helps kidnap reporter Daniel Pearl and is later arrested. Also on January 23, Ansari is placed under surveillance after flying to Dubai, United Arab Emirates. On January 24, Mueller and US Ambassador to Pakistan Wendy Chamberlin discuss Saeed at a previously scheduled meeting with Pakistani President Pervez Musharraf. Apparently Saeed’s role in Pearl’s kidnapping is not yet known. PRESS, 2/24/2002 On Mueller’s way back to the US he flies to Dubai to pressure the government there to arrest Ansari and deport him to India. Ansari is arrested on February 5 and deported four days later. PRESS, 2/10/2002; FRONTLINE (CHENNAI), 2/16/2002; INDIA TODAY, 2/25/2002 April 19, 2002: FBI Claims Hijacker Computer Use Offered No Evidence FBI Director Mueller states: “In our investigation, we have not uncovered a single piece of paper either here in the United States or in the treasure trove of information that has turned up in Afghanistan and elsewhere that mentioned any aspect of the September 11 plot.” He also claims that the attackers used “extraordinary secrecy” and “investigators have found no computers, laptops, hard drives or other storage media that may have been used by the hijackers, who hid their communications by using hundreds of pay phones and cell phones, coupled with hard-to-trace prepaid calling cards.” BUREAU OF INVESTIGATION, 4/19/2002; LOS ANGELES TIMES, 4/22/2002 However, before 9/11 CIA Director Tenet told the Senate that al-Qaeda is “embracing the opportunities offered by recent leaps in information technology” CONGRESS, 3/21/2000 ; the FBI broke the al-Qaeda computer encryption before February 2001 PRESS INTERNATIONAL, 2/13/2001 ; witnesses report seeing the hijackers use computers for e-mail at public libraries in Florida and Maine FLORIDA SUN-SENTINEL, 9/16/2001; BOSTON HERALD, 10/5/2001 ; in October 2001 there were many reports that hundreds of e-mails discussing the 9/11 plot had been found; Moussaoui’s laptop was found to contain important information, etc.… May 8, 2002: FBI Could Not Have Foreseen 9/11, Declares FBI Director Mueller FBI Director Robert Mueller states, “There was nothing the agency could have done to anticipate and prevent the 9/11 attacks.” CONGRESS, 9/18/2002 May 20-24, 2002: Flurry of Government Terrorist Warnings Given at Politically Suspicious Time The Bush administration issues a remarkable series of terror warnings that many believe are politically motivated. Vice President Cheney warns it is “not a matter of if, but when” al-Qaeda will next attack the US. 5/20/2002 Homeland Security Director Tom Ridge says the same thing. Defense Secretary Rumsfeld says terrorists will “inevitably” obtain weapons of mass destruction (see May 21, 2002). FBI Director Mueller says more suicide bombings are “inevitable.” POST, 5/22/2002 Authorities also issue separate warnings that al-Qaeda militants might target apartment buildings nationwide, banks, rail and transit systems, the Statue of Liberty, and the Brooklyn Bridge. USA Today titles an article, “Some Question Motives Behind Series of Alerts.” TODAY, 5/24/2002 David Martin, CBS’s national security correspondent, says, “Right now they’re putting out all these warnings to change the subject from what was known prior to September 11 to what is known now.” It had been revealed the week before that Bush received a briefing in August 2001 entitled, “Bin Laden Determined to Strike in US” (see August 6, 2001). POST, 5/27/2002 Remarkably, even Press Secretary Ari Fleischer says the alerts were issued “as a result of all the controversy that took place last week.” TIMES, 5/22/2002; VILLAGE VOICE, 5/23/2002 A retired CIA official reveals that the administration “made a political decision” to make any threat public, even those deemed to be hoaxes. In response to the alleged threat to New York, the former head of the FBI bureau there states that “there really isn’t any hard information.” STONE, 9/21/2006 Time notes, “Though uncorroborated and vague, the terror alerts were a political godsend for an administration trying to fend off a bruising bipartisan inquiry into its handling of the terrorist chatter last summer. After the wave of warnings, the Democratic clamor for an investigation into the government’s mistakes subsided.” 5/27/2002 May 21, 2002: FBI Whistleblower Reveals Slip-Ups in Moussaoui Arrest Before 9/11 Minnesota FBI Agent Coleen Rowley, upset with what she considers lying from FBI Director Mueller and others in the FBI about the handling of the Zacarias Moussaoui case, releases a long memo she wrote about the case two weeks before 9/11. 5/21/2002 She also applies for whistleblower protection. Time magazine calls the memo a “colossal indictment of our chief law-enforcement agency’s neglect” and says it “raises serious doubts about whether the FBI is capable of protecting the public—and whether it still deserves the public’s trust.” 5/27/2002 Three days after 9/11, Mueller made statements such as “There were no warning signs that I’m aware of that would indicate this type of operation in the country.” Coleen Rowley and other Minnesota FBI agents “immediately sought to reach Mueller’s office through an assortment of higher-level FBI headquarters contacts, in order to quickly make him aware of the background of the Moussaoui investigation and forewarn him so that his public statements could be accordingly modified.” Yet Mueller continued to make similar comments, including in a Senate hearing on May 8, 2002. 5/21/2002; NEW YORK TIMES, 5/31/2002 Finally, after Rowley’s memo becomes public, Mueller states, “I cannot say for sure that there wasn’t a possibility we could have come across some lead that would have led us to the hijackers.” He also admits: “I have made mistakes occasionally in my public comments based on information or a lack of information that I subsequently got.” YORK TIMES, 5/31/2002 Time magazine later names Rowley one of three “Persons of the Year” for 2002, along with fellow whistleblowers Cynthia Cooper of WorldCom and Sherron Watkins of Enron. 12/22/2002; TIME, 12/22/2002 June 6, 2002: FBI Director Mueller: FBI Whistleblower Correct in Some Assessments of Bureau’s Rigidity, Lack of Responsiveness FBI Director Robert Mueller testifies before the Senate Judiciary Committee, just hours before the testimony of FBI agent Coleen Rowley, whose accusations of FBI malfeasance before the 9/11 attacks have sparked Congressional interest (see June 6, 2002). Mueller promises the committee that Rowley will not be punished for speaking out, and admits that Rowley is correct in some of her assessments, including her insistence that the bureau change to meet the threats posed by loosely organized terrorist groups. “When we looked back, we saw things that we should have done better and things that we should have done differently, but we also saw things that were done well and things that we should do more,” Mueller tells the assembled lawmakers. 6/6/2002 Some senators take Mueller’s assessments even farther. Herbert Kohl (D-WI) says, “Had the FBI been totally alert and had the FBI used its current capabilities to the best of its ability, there was at least a very good chance that the terrorist plot could have been uncovered.” ANGELES TIMES, 6/7/2002 Refuses to Answer Questions about Presidential Discussions - Committee member Joe Biden (D-DE) repeatedly asks Mueller whether President Bush consulted with him before the 2001 reorganization of the nation’s domestic security apparatus under the Homeland Security rubric (see September 20, 2001). Mueller refuses to discuss his conversations with Bush. “There is no executive privilege here,” Biden says. “I’m asking you whether you were consulted. I think this is ridiculous.” Law enforcement officials later confirm that both Mueller and Attorney General John Ashcroft were consulted as part of planning for the reorganization. 'Antiquated' Computer System - Democratic senator Charles Schumer (D-NY) questions Mueller about the antiquated computer system used by the FBI (Rowley herself will testify that her agents could not search FBI files for information pertaining to their inquiry into so-called “20th hijacker” Zacarias Moussaoui—see August 21, 2001 and August 23-27, 2001). Mueller confirms that Rowley and agents working with her could not search for terms such as “flight school,” but instead were limited to single-word searches such as “flight” or “school,” which produced masses of irrelevant results. Schumer calls the FBI system “almost laughable,” and adds, “It just makes my jaw drop to think that on 9/11 or on 9/10 the kind of technology that is available to most school kids, and certainly every small business in this country, wasn’t available to the FBI.” Mueller says it will take two or three years to upgrade the FBI’s computers. “I think we are way behind the curve,” he says. Criticism of Civil Liberties Reductions - Senator Edward Kennedy (D-MA) criticizes Mueller for his decision, in conjunction with Attorney General John Ashcroft, to loosen restrictions on the FBI that limit the bureau’s ability to investigate and monitor citizen dissidents and organizations. “In particular, I’m troubled by the visa-holder-registration policy announced yesterday,” he says, referring to a Justice Department plan to require that about 100,000 foreigners in the United States be fingerprinted by the government. “Your agency is expending valuable time and resources to recruit these US citizens in our Arab and Muslim communities. And at the same time, the Justice Department is photographing, fingerprinting and registering their law-abiding siblings, cousins, visiting the United States.” YORK TIMES, 6/7/2002 “What impact do you think these policies will have on the Arab and Muslim communities in the US if you’re holding job fairs in the morning and fingerprinting them in the afternoon?” Kennedy asks. Mueller responds that the FBI will be careful not to step on anyone’s constitutional rights: “I still believe that we have to protect the freedoms that we have in this country that are guaranteed by the Constitution, or all the work we do to protect it will be at naught.” ANGELES TIMES, 6/7/2002 June 6, 2002: FBI Whistleblower Says FBI Is Overwhelmed with Paperwork, ‘Roadblocks’ to Investigations FBI agent Coleen Rowley, the whistleblower who wrote a stinging memo questioning the bureau’s handling of the Zacarias Moussaoui case (see May 21, 2002), testifies before the Senate Judiciary Committee. Her memo, in which she accused FBI Director Robert Mueller of participating in what she called “a delicate and subtle shading/skewing of facts… at the highest levels of FBI management,” has become a focus of Congressional probes into what many lawmakers perceive as a systemic failure of intelligence gathering preceding the 9/11 attacks. Rowley calls the FBI a bureaucracy rife with “risk aversion,” “roadblocks” to investigations, and “endless, needless paperwork.” Rowley says she is concerned that the FBI has moved towards even more bureaucracy and micromanagement in the months following the attacks. 6/6/2002; BBC, 6/6/2002; SENATE JUDICIARY COMMITTEE, 6/6/2002 “Seven to nine layers” of management “is really ridiculous,” she says. “We need a way to get around the roadblocks.” But Rowley is more sympathetic to Mueller in her testimony than in her memo, and praises him for appearing willing to consider some of the new ideas and approaches that she says need to be implemented. YORK TIMES, 6/7/2002; LOS ANGELES TIMES, 6/7/2002 In his own testimony before the same committee just hours before Rowley speaks, Mueller promises that Rowley will not be punished for speaking out, and admits that some of Rowley’s assessments are correct (see June 6, 2002). 6/6/2002 The questioning and commentary by the committee members varies somewhat by party affiliation, with Democrats such as Charles Schumer repeatedly praising Rowley “for performing a national service in coming forward,” but even committee Republicans such as Arlen Specter and Jeff Sessions engage in criticizing the FBI. YORK TIMES, 6/7/2002 Charles Grassley ® calls Rowley “a patriotic American who had the courage to put truth first and raise critical but important questions about how the FBI handled a terrorist case before the attacks, and about the FBI’s cultural problems.” ANGELES TIMES, 6/7/2002 June 18, 2002: FBI Director Mueller Maintains 9/11 Attacks Could Not Have Been Prevented FBI Director Robert Mueller testifies before the 9/11 Congressional Inquiry. His testimony will be made public in September 2002. PRESS, 9/26/2002 Mueller claims that with the possible exception of Zacarias Moussaoui, “to this day we have found no one in the United States except the actual hijackers who knew of the plot and we have found nothing they did while in the United States that triggered a specific response about them.” CONGRESS, 9/26/2002 The 9/11 Congressional Inquiry will later conclude near the end of 2002 that some hijackers had contact inside the US with individuals known to the FBI, and the hijackers “were not as isolated during their time in the United States as has been previously suggested.” ANGELES TIMES, 12/12/2002 Mueller also claims, “There were no slip-ups. Discipline never broke down. They gave no hint to those around them what they were about.” CONGRESS, 9/26/2002 Early July 2002: Moussaoui Expresses Willingness to Talk, Offer Is Rejected by Justice Department Zacarias Moussaoui indicates that he is willing to disclose information to the US authorities, but his overtures are rejected by the FBI and the Justice Department. After learning of Moussaoui’s offer, Minneapolis FBI counsel Coleen Rowley contacts assistants to FBI director Robert Mueller and to Justice Department manager Michael Chertoff. She says she is worried about Moussaoui’s research into cropdusting and wind patterns, and that the information he could provide may prove useful averting a second strike by al-Qaeda. Rowley will later comment: “But by that time Moussaoui had been charged with the death penalty and I deduced that general John Ashcroft would not allow any potential for bargaining leverage to be injected into the case.” POST, 5/2/2007 After August 1, 2002: FBI Director Mueller Prevents Criminal Probe of Media Leaks in Anthrax Attacks Investigation On June 25, 2002, and again on August 1, 2002, the FBI conducts searches of Steven Hatfill’s apartment, and the media is tipped off in advance. Some FBI agents are upset at the lax security allowing the leaks (see June 25, 2002 and August 1, 2002). At some point after the second search, an unnamed FBI official recommends a criminal probe of the leaks with mandatory polygraph tests. However, according to later court testimony by FBI agent Robert Roth, FBI Director Robert Mueller opposes the idea. Mueller says: “I don’t want to do that.… It’s bad for morale to go after these people.” Apparently, no action is taken and the leaks continue. ANGELES TIMES, 6/29/2008 In at least one media leak in August 2002, it will later be found that one of the leakers was Van Harp, the head of the FBI’s anthrax investigation (see August 4, 2002). September 25, 2002: FBI Director Mueller Denies Moussaoui Leads Could Have Prevented 9/11 In an interview with CBS, FBI Director Robert Mueller states, “I can tell you there are things I wish we had done differently. That there are things we should have followed up on. But the bottom line is I do not believe that we would have been able to prevent 9/11.” Speaking about the Zacarias Moussaoui case, he says, “That took us several months, to follow that lead, and it also required the full support of the German authorities, and it would have been very, I think impossible to have followed that particular lead in the days between the time in which Moussaoui was detained and September 11th.” NEWS, 9/25/2002 This negativism is in sharp contrast to a previous statement he made on May 21, 2002 (see May 21, 2002), as well as the opinion of many rank and file FBI officers, some of whom have made a chart showing how all the hijackers could have been caught if certain leads had been followed. 6/2/2002 Mueller’s opinion on the Moussaoui case is contradicted by many, including FBI agents working on that case. 5/21/2002 The media also does not agree. For instance the Independent suggested information on Moussaoui’s computer “might have been enough to expose the Hamburg cell, which investigators believe was the key planning unit for 11 September.” 12/11/2001 October 18, 2002: Mueller Describes Continuum Between Dissenters and Terrorists FBI Director Mueller says in a speech, “There is a continuum between those who would express dissent and those who would do a terrorist act. Somewhere along that continuum we have to begin to investigate. If we do not, we are not doing our job. It is difficult for us to find a path between the two extremes.” NEWS (SAN JOSE), 10/19/2002 October 18, 2002: Ashcroft Invokes ‘State-Secrets Privilege’ to Prevent FBI Whistleblower’s Suit from Being Heard in Court At the request of FBI Director Robert Mueller, Attorney General John Ashcroft files a declaration invoking the “state secrets” privilege (see March 9, 1953) to block FBI translator Sibel Edmonds’ lawsuit against the government from being heard in court. YORK OBSERVER, 1/22/2004 The Justice Department insists that disclosing her evidence, even at a closed hearing in court, “could reasonably be expected to cause serious damage to the foreign policy and national security of the United States.” The “state secrets privilege,” derived from English common law, has never been the subject of any congressional vote or statute. Normally, the privilege is used to block the discovery of a specific piece of evidence that could put the nation’s security at risk. But Ashcroft’s declaration asserts that the very subject of her lawsuit constitutes a state secret, thus barring her from even presenting her case in court. The text of Ashcroft’s declaration is classified. FAIR, 9/2005 The Justice Department’s Director of Public Affairs, Barbara Comstock, says in a press release: “To prevent disclosure of certain classified and sensitive national security information, Attorney General Ashcroft today asserted the state secrets privilege.… The state secrets privilege is well established in federal law… and allows the Executive Branch to safeguard vital information regarding the nation’s security or diplomatic relations. In the past, this privilege has been applied many times to protect our nation’s secrets from disclosure, and to require dismissal of cases when other litigation mechanisms would be inadequate. It is an absolute privilege that renders the information unavailable in litigation.” DEPARTMENT OF JUSTICE, 10/18/2002; SIEGEL, 2008, PP. 201 Late 2002: Head of FBI’s Anthrax Attacks Investigation Changes, but Focus on Suspect Hatfill Remains On October 15, 2001, FBI Director Robert Mueller appointed Van Harp, a 32-year FBI veteran, head of the anthrax attacks investigation. By late 2002, Harp is ready for retirement and senior FBI agent Richard Lambert takes over as the new head. However, like Harp, Lambert seems focused on suspect Steven Hatfill and little interested in other potential suspects. Eventually, some FBI agents will seek a review of Lambert’s administration. One agent will later say: “There were complaints about him. Did he take energy away from looking at other people? The answer is yes.” ANGELES TIMES, 6/29/2008 The FBI will finally drop its interest in Hatfill in late 2006, when Lambert is replaced (see Autumn 2006). (2003 and After): Corporate CEOs Balk at Providing Customer Information to Three US Intelligence Agencies Chief executive officers of telecommunications companies and financial institutions express reluctance to provide data about their customers to three government agencies, the CIA, FBI, and Department of Homeland Security. The CEOs have been providing telephone, Internet and financial records to the CIA and, through it, the NSA to support “black” intelligence operations for some time (see After July 1997), but after 9/11 the FBI asks for the same information that the CIA is getting. Then, after it is established in late 2002, the Department of Homeland Security also wants the same information. The CEOs begin saying, “Look, we’ll do this once but not three times,” and prefer to give the information to the FBI, which has formal subpoenas. The dispute grows so serious that White House homeland security adviser Frances Townsend has to mediate and summons FBI Director Robert Mueller and acting CIA Director John McLauglin to the White House to hammer the issue out. After a series of meetings, they agree to each appoint a senior official to coordinate, ensuring companies are not bombarded with multiple requests. 2006, PP. 324-5 January 10, 2003: Government Employees Responsible for 9/11 Failures Are Rewarded and Promoted FBI Director Robert Mueller personally awards Marion (Spike) Bowman with a presidential citation and cash bonus of approximately 25 percent of his salary. 3/3/2003 Bowman, head of the FBI’s national security law unit and the person who refused to seek a special warrant for a search of Zacarias Moussaoui’s belongings before the 9/11 attacks (see August 28, 2001), is among nine recipients of bureau awards for “exceptional performance.” The award comes shortly after a 9/11 Congressional Inquiry report saying Bowman’s unit gave Minneapolis FBI agents “inexcusably confused and inaccurate information” that was “patently false.” (MINNEAPOLIS), 12/22/2002 Bowman’s unit was also involved in the failure to locate 9/11 hijackers Khalid Almihdhar and Nawaf Alhazmi after their names were put on a watch list (see August 28-29, 2001). In early 2000, the FBI acknowledged serious blunders in surveillance Bowman’s unit conducted during sensitive terrorism and espionage investigations, including agents who illegally videotaped suspects, intercepted e-mails without court permission, and recorded the wrong phone conversations. PRESS, 1/10/2003 As Senator Charles Grassley (R-IA) and others have pointed out, not only has no one in government been fired or punished for 9/11, but several others have been promoted: 3/3/2003 February 7-13, 2003: Orange Alert Causes Duct Tape and Plastic Sheeting Buying Panic The government raises the threat level to orange. The announcement is made by Attorney General John Ashcroft, Homeland Security Secretary Ridge, and FBI Director Mueller. CIA Director George Tenet calls the threat “the most specific we have seen” since 9/11 and says al-Qaeda may use a “radiological dispersal device, as well as poisons and chemicals.” Ashcroft states that “this decision for an increased threat condition designation is based on specific intelligence received and analyzed by the full intelligence community. This information has been corroborated by multiple intelligence sources.” 2/7/2003 Ashcroft further claims that they have “evidence that terrorists would attack American hotels and apartment buildings.” NEWS, 2/13/2007 A detailed plan is described to authorities by a captured terror suspect. This source cited a plot involving a Virginia- or Detroit-based al-Qaeda cell that had developed a method of carrying dirty bombs encased in shoes, suitcases, or laptops through airport scanners. The informant specifies government buildings and Christian or clerical centers as possible targets. NEWS, 2/13/2007 Three days later, Fire Administrator David Paulison advises Americans to stock up on plastic sheeting and duct tape to protect themselves against radiological or biological attack. This causes a brief buying panic. 6/4/2007 Batteries of Stinger anti-aircraft missiles are set up around Washington and the capital’s skies are patrolled by F-16 fighter jets and helicopters. 2/14/2003 The threat is debunked on February 13, when the main source is finally given an FBI polygraph and fails it. Two senior law enforcement officials in Washington and New York state that a key piece of information leading to the terror alerts was fabricated. The claim made by a captured al-Qaeda member regarding a “dirty bomb” threat to Washington, New York, or Florida had proven to be a product of his imagination. Vincent Cannistraro, former head of the CIA’s Counterterrorist Center, says the intelligence turned out “to be fabricated and therefore the reason for a lot of the alarm, particularly in Washington this week, has been dissipated after they found out that this information was not true.” But threat levels remain stuck on orange for two more weeks. NEWS, 2/13/2007 Bush administration officials do admit that the captured terror suspect lied, but add that this suspect was not the only source taken into consideration. Ridge says that there is “no need to start sealing the doors and windows.” Bush says that the warning, although based on evidence fabricated by an alleged terrorist, is a “stark reminder of the era that we’re in, that we’re at war and the war goes on.” 2/14/2003 The alert followed less than forty-eight hours after Colin Powell’s famous speech to the United Nations in which he falsely accused Saddam Hussein of harboring al-Qaeda and training terrorists in the use of chemical weapons (see February 5, 2003). STONE, 9/21/2006 Anti-war demonstrations also continue to take place world-wide. 6/4/2007 February 25, 2003: Senate Report Finds FBI, Justice Department Misuse FISA The Senate Judiciary Committee issues an interim report titled “FISA Implementation Failures” that finds the FBI has mishandled and misused the Foreign Intelligence Surveillance Act (FISA) in its anti-terrorism measures. The report is written by Arlen Specter (R-PA), Charles Grassley (R-IA), and Patrick Leahy (D-VT). CONGRESS, 2/2003 Committee chairman Orrin Hatch (R-UT) not only refused to take part in the report, he issues a letter protesting the report’s findings. Other committee members were invited to take part in drafting the report, but none did so. 3/3/2003 Specter says just after the report is issued, “The lack of professionalism in applying the law has been scandalous. The real question is if the FBI is capable of carrying out a counterintelligence effort.” According to the report, both the FBI and the Justice Department routinely employ excessive secrecy, suffer from inadequate training, weak information analysis, and bureaucratic bottlenecks, and will stifle internal dissent to excess as part of their usage of the expanded powers provided under FISA. The report uses as a case study the instance of suspected terrorist Zacarias Moussaoui (see August 16, 2001), who stands accused of conspiring with the 9/11 hijackers. FBI officials in Washington impeded efforts by its agents in Minneapolis, most notably former FBI agent Coleen Rowley, to secure a FISA warrant that would have allowed those agents to search Moussaoui’s laptop computer and belongings before the attack. CONGRESS, 2/2003; ASSOCIATED PRESS, 2/25/2003 “September 11 might well have been prevented,” says Specter. “What are they doing now to prevent another 9/11?” Grassley adds that in closed Senate hearings, they learned that two supervisors who handled the case did not understand the basic elements of FISA, and a senior FBI attorney could not provide the legal definition of “probable cause,” a key element needed to obtain a FISA warrant. PRESS, 2/25/2003 “I hate to say this,” Leahy observes, “but we found that the FBI is ill-equipped” to conduct surveillance on those in the United States possibly plotting terrorist acts on behalf of foreign powers. 3/3/2003 Lack of Cooperation from FBI, Justice Department - The report says that neither the FBI nor the Justice Department were cooperative with the Judiciary Committee in the committee’s efforts to investigate either agency’s actions under FISA, routinely delaying their responses to Congressional inquiries and sometimes ignoring them altogether. The report says that perhaps the most troubling of its findings is “the lack of accountability that has permeated the entire application procedure.” The report notes that although Congressional oversight is critical to ensure a transparent, effective usage of FISA powers (augmented under the USA Patriot Act) that do not stray from legal boundaries, such oversight has been discouraged by both the FBI and the Justice Department. CONGRESS, 2/2003 The Justice Department dismisses the report as “old news.” LEAHY, 2/27/2003 Grassley says, “I can’t think of a single person being held accountable anywhere in government for what went on and what went wrong prior to Sept. 11. It seems that nobody in government makes any mistakes anymore.” 3/3/2003 Spark for New Legislation - The three senators use the report as a springboard to introduce a bill, the “Domestic Surveillance Oversight Act,” which will allow Congress to more closely oversee oversee FBI surveillance of Americans and government surveillance of public libraries, would supervise FISA usage in criminal cases, and disclose the secret rules of the FISA court to Congress. PRESS, 2/25/2003 Even though all three senators support a lowering of the standards by which a FISA warrant can be issued, the American Civil Liberties Union says it supports the bill, with reservations. “There’s a lot of concern in this country that, especially with the USA PATRIOT Act, FISA has become a massive tool for secret surveillance,” says ACLU lawyer Timothy Edgar. “One way to assuage those concerns—or show that they’re true—is to have more reporting.” Edgar says that the ACLU worries about the lowering of the standards for such warrants, but as long as the bill implement. 3/3/2003 The question of the bill becomes moot, however, as it will never make it out of committee. CONGRESS - SENATE JUDICIARY COMMITTEE, 3/2003 Entity Tags: USA Patriot Act, Robert S. Mueller III, Tim Edgar, Patrick J. Leahy, Senate Judiciary Committee, Marion (“Spike”) Bowman, Federal Bureau of Investigation, US Department of Justice, American Civil Liberties Union, Foreign Intelligence Surveillance Act, Arlen Specter, Domestic Surveillance Oversight Act, Charles Grassley, Zacarias Moussaoui Timeline Tags: Civil Liberties July 24, 2003: 9/11 Congressional Inquiry Suggests Hijackers Received Considerable Assistance Inside US The 9/11 Congressional Inquiry’s final report concludes that at least six hijackers received “substantial assistance” from associates in the US, though it’s “not known to what extent any of these contacts in the United States were aware of the plot.” These hijackers came into contact with at least 14 people who were investigated by the FBI before 9/11, and four of those investigations were active while the hijackers were present. But in June 2002, FBI Director Mueller testified: “While here, the hijackers effectively operated without suspicion, triggering nothing that would have alerted law enforcement and doing nothing that exposed them to domestic coverage. As far as we know, they contacted no known terrorist sympathizers in the United States.” CIA Director Tenet made similar comments at the same time, and another FBI official stated, “There were no contacts with anybody we were looking at inside the United States.” These comments are untrue, because one FBI document from November 2001 uncovered by the Inquiry concludes that the six lead hijackers “maintained a web of contacts both in the United States and abroad. These associates, ranging in degrees of closeness, include friends and associates from universities and flight schools, former roommates, people they knew through mosques and religious activities, and employment contacts. Other contacts provided legal, logistical, or financial assistance, facilitated US entry and flight school enrollment, or were known from al-Qaeda-related activities or training.” CONGRESS, 7/24/2003 The declassified sections of the 9/11 Congressional Inquiry’s final report show the hijackers have contact with: Mamoun Darkazanli, investigated several times starting in 1993 (see 1993; Late 1998); the CIA makes repeated efforts to turn him into an informer (see December 1999). Mohammed Haydar Zammar, investigated by Germany since at least 1997 (see 1996), the Germans periodically inform the CIA what they learn. Osama Basnan, US intelligence is informed of his connections to Islamic militants several times in early 1990s but fails to investigate (see April 1998). Omar al-Bayoumi, investigated in San Diego from 1998-1999 (see September 1998-July 1999). Anwar Al Aulaqi, investigated in San Diego from 1999-2000 (see June 1999-March 2000). Osama “Sam” Mustafa, owner of a San Diego gas station, and investigated beginning in 1991 (see Autumn 2000). Ed Salamah, manager of the same gas station, and an uncooperative witness in 2000 (see Autumn 2000). An unnamed friend of Hani Hanjour, whom the FBI tries to investigate in 2001. An unnamed associate of Marwan Alshehhi, investigated beginning in 1999. Hijackers Nawaf Alhazmi and Khalid Almihdhar, who had contact with Basnan, al-Bayoumi, Aulaqi, Mustafa, and Salamah, “maintained a number of other contacts in the local Islamic community during their time in San Diego, some of whom were also known to the FBI through counterterrorist inquiries and investigations,” but details of these individuals and possible others are still classified. CONGRESS, 7/24/2003 None of the above people have been arrested or even publicly charged with any crime associated with terrorism, although Zammar is in prison in Syria. Spring 2004: FBI Director Conducts Charm Offensive against 9/11 Commission to Save Bureau FBI Director Robert Mueller launches a charm offensive to win over the 9/11 Commission and ensure that its recommendations are favorable to the bureau. Commission Initially Favored Break-Up - The attempt is greatly needed, as the Commission initially has an unfavorable view of the FBI due to its very public failings before 9/11: the Phoenix memo (see July 10, 2001), the fact that two of the hijackers lived with an FBI counterterrorism informer (see May 10-Mid-December 2000), and the failure to search Zacarias Moussaoui’s belongings (see August 16, 2001). Commissioner John Lehman will say that at the start of the investigation he thought “it was a no-brainer that we should go to an MI5,” the British domestic intelligence service, which would entail taking counterterrorism away from the bureau. Lobbying Campaign - Author Philip Shenon will say that the campaign against the commissioners “could not have been more aggressive,” because Mueller was “in their faces, literally.” Mueller says he will open his schedule to them at a moment’s notice and returns their calls within minutes. He pays so much attention to the commissioners that some of them begin to regard it as harassment and chairman Tom Kean tells his secretaries to turn away Mueller’s repeated invitations for a meal. Mueller even opens the FBI’s investigatory files to the Commission, giving its investigators unrestricted access to a special FBI building housing the files. He also gets Dame Eliza Manningham-Buller, head of MI5, to meet the commissioners and intercede for the bureau. Contrast with CIA - The campaign succeeds and the Commission is convinced to leave the FBI intact. This is partially due to the perceived difference between Mueller and CIA Director George Tenet, who the Commission suspects of telling it a string of lies (see July 2, 2004). Commissioner Slade Gorton will say, “Mueller was a guy who came in new and was trying to do something different, as opposed to Tenet.” Commission Vice Chairman Lee Hamilton will also say that the Commission recommended changing the CIA by establishing the position of director of national intelligence. It is therefore better to leave the FBI alone because “the system can only stand so much change.” Change Partially Motivated by Fear - This change of mind is also partially motivated by the commissioners’ fear of the bureau. Shenon will comment: “Mueller… was also aware of how much fear the FBI continued to inspire among Washington’s powerful and how, even after 9/11, that fear dampened public criticism. Members of congress… shrank at the thought of attacking the FBI.… For many on Capitol Hill, there was always the assumption that there was an embarrassing FBI file somewhere with your name on it, ready to be leaked at just the right moment. More than one member of the 9/11 Commission admitted privately that they had joked—and worried—among themselves about the danger of being a little too publicly critical of the bureau.” 2008, PP. 364-368 March 9, 2004: Cheney Leads Internal Battle for Approval of Warrantless Wiretapping Program Chuck Rosenberg. Associated Press / Charles Dharapak Vice President Dick Cheney challenges objections to the White House’s secret, warrantless surveillance program (see Early 2002) by Justice Department officials. Cheney makes his objections during a meeting attended by high-level White House and Justice Department officials, but this does not come to light until a 2007 testimony by Deputy Attorney General James Comey (see May 15, 2007). POST, 6/7/2007 (Comey will step down from his post in mid-2005.) 4/21/2005 The White House meetings take place one day before White House officials journey to Attorney General John Ashcroft’s hospital room to try to force Ashcroft to give his approval for the NSA-managed surveillance program (see March 10-12, 2004). Ashcroft will refuse to give his approval. Cheney’s key role in leading what the Washington Post calls “a fierce internal battle over the legality of the warrantless surveillance program” is not known until Comey’s 2007 testimony. The White House meeting, held to discuss Justice Department objections to the NSA program, is attended by Cheney, White House counsel and future attorney general Alberto Gonzales, Cheney’s chief counsel David Addington, and others. Comey will testify that at the time, eight Justice Department officials are prepared to resign if the White House doesn’t back down on forcing the department to sign off on the program. Those officials include FBI director Robert Mueller, US attorney Chuck Rosenberg of the northern Virginia district, and Office of Legal Counsel head Jack Goldsmith. POST, 6/7/2007 March 10, 2004: Cheney Briefs ‘Gang of Eight’ Congressional Leaders on Warrantless Wiretapping Program; Reportedly Misleads Them Vice President Dick Cheney gives the Congressional leaders known as the “Gang of Eight”—the House Speaker and House Minority Leader, the Senate Majority and Minority Leaders, and the ranking members of the House and Senate intelligence committees—their first briefing on the NSA’s warrantless wiretapping program (see Early 2002). Senate Minority Leader Tom Daschle (D-SD) later recalls the meeting as superficial. Cheney “talked like it was something routine,” Daschle will say. “We really had no idea what it was about.” Unbeknownst to many of the Congressional leaders, White House and Justice Department leaders are locked in a sharp dispute over whether or not the program is legal and should be continued; Cheney is preparing to send White House counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft’s hospital room to persuade the gravely ill and heavily sedated Ashcroft to overrule acting attorney general James Comey and reauthorize the program (see March 10-12, 2004). The briefing is designed to give the appearance of Congressional approval for the program. While most Republicans in the briefing give at least tacit approval of the program, some Democrats, as Daschle will later recall, express “a lot of concerns” over the program’s apparent violation of fundamental Congressional rights. House Minority Leader Nancy Pelosi later recalls that she “made clear my disagreement with what the White House was asking.” But administration officials such as Gonzales will later say (see July 24, 2007) that the eight Congressional leaders are in “consensus” in supporting the program, a characterization that is patently false (see July 25, 2007.) Gonzales will also later testify that this briefing did not cover the NSA wiretapping program, later dubbed the “Terrorist Surveillance Program” (TSP), another apparent falsehood contradicted by Democratic senators such as Russ Feingold and Jay Rockefeller, as well as testimony and notes on the hospital room visit made by FBI director Robert Mueller and a memo from John Negroponte, the Director of National Intelligence. Many feel that Gonzales is using the moniker “Terrorist Surveillance Program,” not in use until December 2005, to play what Newsweek reporter Michael Isikoff calls “verbal parsing” and “a semantic game”—since the NSA wiretapping program was not known by that name at the time of the Congressional briefing, Gonzales will imply that the briefing wasn’t about that program. 8/6/2007 Domestic Surveillance Began Before 9/11? - Cheney fails to inform the lawmakers that the wiretapping program may have begun well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002). March 10-12, 2004: Gonzales, Card Attempt to Pressure Hospitalized Ashcroft to Approve Secret Wiretapping Program Attorney General John Ashcroft is visited by a squad of top White House and Justice Department officials just hours after Ashcroft underwent emergency surgery for severe, acute pancreatis, and is still recuperating in intensive care. The White House officials attempt to persuade the barely lucid Ashcroft to give his formal approval for the secret National Security Agency warrantless wiretapping surveillance program (see Early 2002), which requires the Justice Department to periodically review and approve it. PUBLIC RADIO, 5/15/2007; WASHINGTON POST, 5/16/2007; WASHINGTON POST, 6/7/2007; ASSOCIATED PRESS, 6/7/2007 Comey, Goldsmith Rush to Head Off Aides - Deputy Attorney General James Comey testifies to the incident before the Senate Judiciary Committee over three years later (see May 15, 2007). Comey will recall that he and Ashcroft had decided not to recertify the surveillance program due to their concerns over its legality and its lack of oversight. On March 9, Ashcroft was rushed to the hospital with severe pancreatis. As per Justice Department procedures, Comey became acting attorney general for the duration of Ashcroft’s incapacity. The next night, just hours after Ashcroft underwent emergency surgery for the removal of his gallbladder, Comey receives an urgent phone call from Ashcroft’s aide, David Ayres, who himself has just spoken with Ashcroft’s wife Janet. Ayres tells Comey that White House counsel Alberto Gonzales and White House chief of staff Andrew Card are en route to Ashcroft’s hospital room to pressure Ashcroft to sign off on the program recertification. A furious Comey telephones FBI director Robert Mueller, and the two, accompanied by aides, race separately through the Washington, DC streets with sirens wailing to reach Ashcroft’s hospital room; they beat Gonzales and Card to the room by a matter of minutes. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey will testify, and will add that to him, Ashcroft appears “pretty bad off.” En route, Mueller instructs the security detail protecting Ashcroft not to allow Card or Gonzales to eject Comey from the hospital room. Card and Gonzales enter just minutes later. POST, 5/16/2007; PBS, 5/16/2007 “And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey will testify. “They came over and stood by the bed, greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there—to seek his approval for a matter.” PUBLIC RADIO, 5/15/2007 Gonzales is holding an envelope containing an executive order from Bush. He tells Ashcroft that he needs to sign off on the order, thereby giving the wiretapping program Justice Department authorization to continue unabated. Comey will testify that Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me. then adds ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general,’” pointing at Comey. Gonzales and Card leave the room without ever acknowledging Comey’s presence. “I was angry,” Comey will recall. “I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” POST, 5/16/2007; WASHINGTON POST, 6/7/2007 “That night was probably the most difficult night of my professional life, so it’s not something I forget,” Comey will testify. 5/16/2007 Goldsmith is also in the room; like Comey, Goldsmith receives a phone call alerting him to Gonzales’s and Card’s visit, and like Comey, Goldsmith races through the Washington streets to arrive at Ashcroft’s room minutes before Gonzales and Card arrive. He, too, is astonished at the brazen, callous approach taken by the two White House officials against Ashcroft, who he describes as laying in his darkened hospital room, with a bright light shining on him and tubes and wires protruding from his body. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith later recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.” As Gonzales and Card leave the room, Goldsmith will recall, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.” YORK TIMES MAGAZINE, 9/9/2007 After Gonzales and Card leave the room, Comey asks Mueller to instruct the security detail not to let any more visitors into the room, except for family, without Mueller’s approval, apparently in order to keep Gonzales and Card from attempting to return. DEPARTMENT OF JUSTICE, 8/14/2007 Cheney or Bush Behind Visit? - The hospital visit is sparked by at least two events: a meeting of White House officials a day earlier, where Vice President Dick Cheney attempted to push reluctant Justice Department officials to approve the surveillance program (see March 9, 2004), and Comey’s own refusal to certify the legality of the surveillance, as noted above. POST, 6/7/2007 Some believe that the timing of the incident shows that Cheney is the one who ordered Gonzales and Card to go to Ashcroft’s hospital room; Comey personally informed Cheney of his decision not to give his approval to the program. Speculation about Cheney’s ordering of the visit cannot be confirmed, JOURNAL, 7/7/2007; NATIONAL JOURNAL, 8/16/2007 though the New York Times states flatly in an op-ed that “Vice President Dick Cheney sent Mr. Gonzales and Card to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.” YORK TIMES, 7/29/2007 Three years later, Goldsmith will tell Congress that he believes Bush himself authorized the visit (see October 2, 2007). Meeting in the White House - Minutes after the incident in Ashcroft’s hospital room, Card orders Comey to appear at a late-night meeting at the White House; Comey refuses to go alone, and pulls Solicitor General Theodore Olson from a dinner party to act as a witness to the meeting. “Mr. Card was very upset and demanded that I come to the White House immediately. After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey will testify. “Card replied, ‘What conduct? We were just there to wish him well.’ And I said again, ‘After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.’” On March 11, after an al-Qaeda bombing in Madrid kills over 200 people (see 7:37-7:42 a.m., March 11, 2004, Bush recertifies the program without the approval of the Justice Department. Comey responds by drafting a letter of resignation, effective March 12. “I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he will testify. “I just simply couldn’t stay.” Comey is not the only one threatening to resign; he is joined by Ashcroft, Mueller, Ayres, Goldsmith, Justice Department official Patrick Philbin, and others, who all intend to resign en masse if Bush signs off on the surveillance program without Justice Department support. But Ayres persuades Comey to delay his resignation; in Comey’s words, Ayres “asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me.” Instead of resigning on March 12, Bush meets separately with Comey and Mueller, and promises to make changes in the program (see March 12-Mid-2004). Those changes have never been disclosed, though some changes are later found to be the creation of a secret review court to oversee the surveillance court, and the clarification of what exactly constitutes “probable cause” for surveillance. Comey will testify,…“Director Mueller came to me and said that, ‘The president told me that the Department of Justice should get this where it wants to be—to do what the department thinks is right.’ And I took that mandate and set about to do that, and I accomplished that.” 1/9/2006; NATIONAL PUBLIC RADIO, 5/15/2007; NEW YORK TIMES, 5/15/2007; WASHINGTON POST, 5/16/2007; PBS, 5/16/2007; ASSOCIATED PRESS, 6/7/2007 Goldsmith recalls his surprise when Congress later approves the program and brings it somewhat under the supervision of the FISA court. “I was sure the government was going to melt down,” Goldsmith says in 2007. “No one anticipated they were going to reverse themselves.” YORK TIMES MAGAZINE, 9/9/2007 Did Gonzales Break the Law? - It is also possible that Gonzales and Card may have broken the law in discussing classified information in a public venue. “Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says law professor Neal Katyal, a national security adviser under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power. And the NSA program is particularly sensitive. One government official familiar with the program notes, “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community. The law governing disclosure of classified information is quite strict, and numerous government and military officials have been investigated for potential violations in the past. “It’s the one you worry about,” says the government official. Katyal says that if Gonzales did indeed break the law, the Justice Department cannot run any investigation into the matter: “The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations.” Many others are dismayed and confused by the contradictions between the absolute secrecy surrounding the program, and Gonzales’s and Card’s willingness to openly discuss it in such an insecure location, and in front of witnesses not cleared to hear details about the program—including Ashcroft’s wife, who is present in the room while the officials seek her husband’s signature. Former NSA general counsel Elizabeth Parker says not enough is known about the meeting to be sure whether or not the law was broken. “Obviously things can be discussed in ways that don’t divulge highly classified information,” she says. “The real issue is what is it about this program that is so classified that can’t allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.” 'Horrible' Judgment - John Martin, who oversaw Justice’s counterintelligence division for 26 years, calls Gonzales’s and Card’s attempt to override Comey’s authority as acting attorney general as more than just “bad judgment.” Martin calls their judgement “horrible…they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey’s actions were heroic under the circumstances.” 5/17/2007 Snow Dismisses Concerns - In May 2007, after Comey’s testimony to the Senate hits the media, White House press secretary Tony Snow dismisses any concerns about the inappropriateness of Gonzales’s and Card’s pressuring of Ashcroft in his hospital room, and skips over the fact that Comey, not Ashcroft, had the final authority of the Attorney General at the time. “Because he had an appendectomy, his brain didn’t work?” Snow will say of Ashcroft. “Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it’s vital for national security and furthermore has been reformed in a bipartisan way.” Judiciary Committee member Charles Schumer (D-NY) has a different take on the incident: “What happened in that hospital room crystallized Mr. Gonzales’ view about the rule of law: that he holds it in minimum low regard.” PRESS, 6/7/2007 Senate Democrats are preparing to introduce a resolution of no-confidence against Gonzales. 5/17/2007